Citation Nr: 9809212
Decision Date: 03/26/98 Archive Date: 04/14/98
DOCKET NO. 96-19 612 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama
THE ISSUES
1. Entitlement to service-connection for bilateral hearing
loss.
2. Entitlement to service-connection for bilateral tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L.J. Bakke, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1942 to
November 1945.
This appeal arises before the Board of Veterans’ Appeals
(Board) from a January 1996 rating decision in which service
connection for bilateral hearing loss and bilateral tinnitus
was denied.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he currently suffers from bilateral
hearing loss and tinnitus that were incurred as a result of
his active service. Specifically, he avers that he worked as
an aircraft mechanic and was exposed daily to loud noises and
acoustic trauma while in service. Accordingly, he contends
that service connection for his bilateral hearing
disabilities is warranted therefor.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not presented
well-grounded claims for service connection for bilateral
hearing loss and bilateral tinnitus.
FINDINGS OF FACT
1. The veteran served as an aircraft mechanic and as a crew
chief during World War II.
2. The veteran has presented competent medical evidence of
current bilateral hearing loss, but tinnitus has never been
diagnosed.
3. The veteran has not presented competent evidence of a
nexus between any inservice injury or disease and his current
bilateral hearing loss and claimed tinnitus.
4. The veteran’s claims of service connection for bilateral
hearing loss and tinnitus and not plausible.
CONCLUSIONS OF LAW
1. The claim for service connection for bilateral hearing
loss is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West
1991); 38 C.F.R. §§ 3.303, 3.385 (1997).
2. The claim for service connection for bilateral tinnitus
is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.385 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
For the Board to consider the veteran’s claims, the veteran
must submit evidence that the claims are well grounded.
38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is
a plausible claim, one that is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). A well-grounded claim also requires more than
just mere allegations that the veteran’s service, or an
incident that occurred therein, resulted in illness, injury,
or death. The veteran must submit supporting evidence that
would justify the belief that the claim is plausible. See
Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Grivois v.
Brown, 6 Vet. App. 136 (1994). Evidentiary assertions by the
claimant must be accepted as true for the purpose of
determining if a claim is well grounded, except where such
assertions are inherently incredible or beyond the competence
of the person making the assertion. King v. Brown, 5 Vet.
App. 19 (1993)
Service connection may be established for disability
resulting from personal injury or disease incurred in or
aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991).
In the absence of chronicity at onset, a grant of service
connection requires evidence of continuity of symptomatology
demonstrating that a current disability was incurred in
service. 38 C.F.R. § 3.303(b) (1997). Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran’s current disability was
incurred in service. 38 C.F.R. § 3.303(d) (1997).
The three elements of a “well grounded” claim for service
connection are (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the inservice disease or
injury and the current disability, as provided by competent
medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506
(1994).
VA regulations provide that impaired hearing will be
considered a disability when the auditory threshold in any of
the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of those same frequencies are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1997).
Service connection for hearing loss may be established where
these hearing loss thresholds are currently met and the
evidence of record, including that pertinent to service,
establishes that a current hearing loss was incurred in
service. See Ledford v. Derwinski, 3 Vet. App. 87, 87
(19923); 38 C.F.R. § 3.303(d) (1997).
The veteran has provided competent medical evidence that
demonstrates he does currently suffer from bilateral hearing
loss as defined by 38 C.F.R. § 3.385, but there is no medical
evidence showing a diagnosis of bilateral tinnitus. Results
of a private audiological examination, dated in June 1995,
indicate, graphically, findings of bilateral hearing loss.
In addition, a September 1995 VA audiological examination
evidences bilateral hearing loss and the veteran reported a
history of
tinnitus. However, he has not proffered any competent
medical evidence demonstrating his current bilateral hearing
and claimed tinnitus are linked to an inservice injury or
disease.
The Board notes that the veteran’s service medical records
are missing. The RO and the National Personnel Records
Center (NPRC) have made attempts to obtain these records, to
no avail. The NPRC has concluded that the veteran’s records
may have been destroyed at a fire at the Center. A VA Form
70-3101-4 is of record. Handwritten on the bottom is a note
stating that reports of physical examination at induction and
separation could not be reconstructed. However, even if
these records could be found, they would prove only the
truthfulness of the averred inservice acoustic trauma. These
records would not establish an etiological link between this
inservice injury and the veteran’s current bilateral hearing
loss or claimed tinnitus. No medical evidence has been
provided linking the veteran’s hearing loss and claimed
tinnitus to acoustic trauma.
The Board notes that a lay statement proffered by the
veteran’s wife is of record. In her statement, the veteran’s
wife notes that she and the veteran married within eleven
months of the veteran’s discharge from active service. She
further avers that the veteran appeared hard of hearing at
that time. She avers that he spoke loudly but did not seem
to notice the increased volume, and that she had to repeat
herself at times because he could not hear her. While the
veteran’s wife is competent to testify about her subjective
observations of the veteran and his complaints, the record
does not show that she has the medical expertise or training
to provide opinions on clinical findings regarding the
etiology, nature or extent of the veteran’s claimed hearing
loss or tinnitus. Thus, her statements do not constitute the
competent evidence required to make the veteran’s claims
well-grounded, or to establish the presence of sensorineural
hearing loss within the one-year presumptive period following
the veteran’s discharge from service which is contemplated
under 38 U.S.C.A. § 1101 (West 1991) for a grant of service
connection on a presumptive basis. Furthermore, her
statements do not constitute competent medical evidence
for the purposes of showing an etiological link between the
veteran’s current complaints and any inservice noise exposure
or acoustic trauma. As indicated earlier, no medical
evidence has been submitted establishing such a link. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v.
Brown, 5 Vet. App. 91 (1993).
It is not until June 1995, almost 50 years after his
discharge from service, that the medical evidence of record
demonstrates that the veteran first sought treatment for his
hearing loss and claimed tinnitus. The September 1995 VA
examination report reveals a history, as given by the
veteran, of decreased hearing and tinnitus since 1944 and of
acoustic trauma incurred during his active service. While
these records and that of the June 1995 private audiological
examination demonstrate the current existence of bilateral
hearing loss and symptoms of tinnitus, neither the private
medical records nor the VA examination report include an
opinion as to the cause of the veteran’s claimed
disabilities. Similarly, the balance of the evidentiary
record is silent as to the etiology of the veteran’s
disabilities.
The veteran has presented his own statements regarding the
cause of his bilateral hearing loss and claimed tinnitus.
However, the record does not show that the veteran is a
medical professional or has the training and expertise that
would qualify him to provide opinions on clinical findings
regarding the etiology of his hearing disabilities, or their
relationship to service. Consequently, his statements do not
constitute competent medical evidence for the purposes of
rendering his claims well grounded. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet.
App. 91 (1993).
As the veteran has presented no evidence, other than his own
allegations and the lay testimony of his wife, to establish a
nexus between his current bilateral hearing loss and claimed
tinnitus, and any inservice injury or disease, his claims for
service connection for bilateral hearing loss and bilateral
tinnitus are not well grounded. 38 U.S.C.A. § 5107(a);
Caluza, 7 Vet. App. at 506.
Where a claim is not well grounded, VA does not have a
statutory duty to assist a
claimant in developing facts pertinent to the claim.
Nevertheless, VA may be obligated under 38 U.S.C.A. § 5013(a)
to advise the claimant of evidence needed to complete his
application. This obligation depends on the particular facts
of the case
and the extent to which VA has advised the claimant of the
evidence necessary to be submitted with a VA benefits claim.
Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). Here, the
RO fulfilled its obligation in its letter to the veteran,
requesting evidence that he had been treated for his claimed
disabilities since his discharge from active service, and in
its statement of the case, which informed the veteran of the
reasons his claims had been denied. Also, by this decision,
the Board informs the veteran of the type of evidence needed
to make his claims well grounded. The Board also notes that,
unlike Robinette, the veteran in this case has not put VA on
notice of the existence of specific evidence which, if
submitted, might make his claim well-grounded.
If the claimant has not presented a well-grounded claim,
there is no duty to assist him further in the development of
the claim because such additional development would be
futile. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.
App. 78 (1990). In the February 1998 written presentation to
the Board, the appellant’s representative has argued that the
Board should determine whether the RO has followed “the
M21-1 substantive rules requiring that full development of
all claims be undertaken prior to the well grounded
determination.” The representative requested that the Board
remand the appeal if the Board finds that the RO did not
follow the specified provisions of M21-1. This manual is not
supposed to be a substantive rule, see Fugere v. Derwinski, 1
Vet. App. 103, 106 (1990), and the representative has not
cited to a court decision that holds that the cited portions
of M21-1 are substantive rules. Consequently, the Board sees
no basis upon which to comply with the representative’s
request in this regard.
ORDER
The veteran’s claim for entitlement to service connection for
bilateral hearing loss and tinnitus are denied.
________________________________
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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